UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS;
OXFORD UNIVERSITY PRESS, INC.;
SAGE PUBLICATIONS, INC.,
Plaintiffs
CIVIL ACTION NO.
1:08-CV-1425-ODE
v.
MARK P. BECKER, in his official
capacity as President of Georgia State
University; RISA PALM, in her official
capacity as Senior Vice President for
Academic Affairs and Provost of
Georgia State University; J.L. ALBERT,
in his official capacity as Georgia State
University Associate Provost for
Information Systems and Technology;
NANCY SEAMANS, in her official
capacity as Dean of Libraries at Georgia
State University; ROBERT F.
HATCHER, in his official capacity as
Vice Chair of the Board of Regents of
the University System of Georgia;
KENNETH R. BERNARD, JR., JAMES
A BISHOP, FREDERICK E. COOPER,
LARRY R. ELLIS, FELTON JENKINS,
W. MANSFIELD JENNINGS, JR.,
JAMES R. JOLLY, DONALD M.
LEEBERN, JR., WILLIAM NESMITH,
JR., DOREEN STILES POITEVINT,
WILLIS J. POTTS, JR., WANDA
YANCEY RODWELL, KESSEL
STELLING, JR., BENJAMIN J.
TARBUTTON, III, RICHARD L.
1
TUCKER, ALLAN VIGIL, and LARRY
WALKER, in their official capacities as
members of the Board of Regents of the
University System of Georgia,
Defendants
DEFENDANTS’ BENCH BRIEF ON
ELEVENTH AMENDMENT IMMUNITY ISSUES
The Court now has the benefit of all of Plaintiffs’ evidence. The proofs are
absent and as such, Defendants Mark P. Becker et al. (collectively, “Defendants”)
respectfully submit this bench brief on Eleventh Amendment immunity issues.
Because Plaintiffs’ First Amended Complaint explicitly alleges that the
Defendants—themselves—scanned, copied, displayed and distributed Plaintiffs’
copyrighted materials, the Court, in its March 17, 2011 Order, instructed the
parties:
to present evidence and argument that will allow the Court to
rule on the question whether Plaintiffs may proceed under Ex
parte Young or whether the case must be dismissed for lack of
subject matter jurisdiction. Based on the pleadings alone, the
Court cannot say that it lacks subject matter jurisdiction to hear
the case.
(Dkt. 267 at 13-14.) It is clear from their Proposed Findings of Fact that Plaintiffs
did not and cannot prove that Ex parte Young applies. And at trial, Plaintiffs failed
to make a prima facie case that any alleged copyright infringement was causally
connected to the named Defendants.
2
Plaintiffs sued only members of the Board of Regents and GSU
administrators, all of whom lack the requisite meaningful connection to the alleged
acts of infringement for the Eleventh Amendment immunity exception under Ex
Parte Young to apply. Accordingly, Defendants’ motion for judgment on partial
findings is ripe for consideration by the Court, and this case should be dismissed
for lack of subject matter jurisdiction.
At trial, the Court asked whether, if the Court decides that Plaintiffs’
appropriate remedy, if any, is against the individual professors, would the
professors enjoy immunity. As explained below, the individual professors are
entitled to Eleventh Amendment immunity so long as they are acting within the
scope of their employment.
I.
ANALYSIS
Defendants were not personally involved in any allegedly “massive”
infringement. Thus, Plaintiffs’ case hinges (1) on Defendants’ general supervisory
authority over the professors’ activities, including postings of classroom readings
on ERes and uLearn that allegedly violated Plaintiffs’ copyrights and (2) on
Defendants’ general responsibility for the creation, implementation, and
enforcement of all university policies, including the Copyright Policy. See Pls.’
Proposed Findings of Fact at 98-108. Neither justify an Ex parte Young action.
3
First, there is no evidence that Defendants did or failed to do anything that
caused professors1 to post particular excerpts on ERes or uLearn. To the contrary,
the evidence demonstrates that each professor selected his or her course readings,
and that prior to posting each accused excerpt, the professor conducted a fair use
analysis in accordance with the Copyright Policy and found the use to be fair, used
the Copyright Policy’s online request form, and represented to the GSU library
staff that he or she had conducted a fair use analysis and found the use of the
particular excerpt to be fair. None of the Defendants were involved in making the
professor’s course reading selections or fair use determinations as to the individual
works used in each professor’s particular course—nor could they reasonably be
expected to do so.
Second, Defendants created, adopted, and implemented a comprehensive
policy on copyright and fair use. The policy requires that each professor complete
a fair use analysis prior to the posting of any materials onto any university
network. The Copyright Policy provides a narrative description of fair use that
incorporates all four of the factors provided by the Copyright Act and references
1
At the start of the trial, Plaintiffs were alleging 99 infringements by 33
professors. Defendants believe that number has now dwindled to 75 alleged
infringements by 23 professors.
4
other resources to consult for more information on fair use. The fair use checklist,
which is to be completed for every fair use analysis, likewise includes the four
factors and is grounded on the statute (17 U.S.C. § 107) and opinions analyzing
fair use. The Copyright Policy thereby appropriately requires the professor—the
person most familiar with the class being taught, the portion of the work to be
used, and the purpose of the proposed use and thus the one in the best possible
position to conduct a “fair use” analysis—to consider all of the factors and to
conduct such an analysis. GSU’s legal department provided education to GSU
staff and professors on the Copyright Policy and its fair use checklist and is
available to any professor requiring assistance in completing the analysis. The
Copyright Policy provides GSU professors with necessary tools to conduct a
meaningful fair use analysis before using any copyrighted materials. Plaintiffs
thus cannot establish that the Copyright Policy or its implementation violates any
federal law. As the Court found in its Order on Summary Judgment, GSU’s “2009
Copyright Policy on its face does not demonstrate an intent by Defendants to
encourage copyright infringement; in fact, it appears to be a positive step to stop
copyright infringement.” (Or. at 29.)
The crux of the issue before this Court is whether the named defendants are
sufficiently connected to the allegedly infringing actions to obviate their Eleventh
5
Amendment protections by way of the Ex parte Young exception. “Sovereign
immunity does not merely constitute a defense to monetary liability or even to all
types of liability. Rather, it provides an immunity from suit.” Fed. Maritime
Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 764 (2002) (per Thomas, J.)
(emphasis added).
Recognizing that the Eleventh Amendment threatened to render federal
courts powerless to prevent state violations of the Constitution, the Supreme Court
carved out a narrow exception in Ex parte Young, permitting courts to grant
injunctive relief against state officers to preserve the Constitution as the “supreme
law of the land.” Alden v. Maine, 527 U.S. 706, 747 (1999). The Young exception
provides that a state official may be sued in his or her official capacity for
injunctive or other prospective relief, but only when the state itself is the moving
force behind the deprivation. Kentucky v. Graham, 473 U.S. 159, 166, 169 (1985).
Thus courts must judiciously invoke Ex parte Young and endeavor towards a
“proper balance between the supremacy of federal law and the separate sovereignty
of the States.” Id.; see also Papasan v. Allain, 478 U.S. 265, 277 (1986)
(explaining the Supreme Court has “described certain types of cases that formally
meet the Young requirements but that stretch that case too far and would upset the
balance of federal and state interests that it embodies.”). “Were it otherwise, the
6
Eleventh Amendment, and not Ex parte Young, would become the legal fiction.”
Verizon Md., Inc. v. Pub. Serv. Comn’n of Md., 535 U.S. 635, 649 (2002)
(Kennedy, J., concurring). Here, the state is not the moving force behind any
deprivation the Plaintiffs contend they have suffered. Rather, as discussed above,
the State has implemented a policy that reflects a serious nonpretextual good faith
effort to prevent the Plaintiffs from suffering any such deprivation.
Plaintiffs contend that the doctrine of respondeat superior rescues their
cause of action. With this argument, Plaintiffs attempt to circumvent long-standing
Ex parte Young jurisprudence that requires a meaningful connection between the
named defendants and the allegedly unlawful conduct. Plaintiffs argue that “[t]he
only relevant question is whether the named defendants have the authority to stop
the violations about which Plaintiffs complain.” (Pls.’ Opp. to Defs.’ Mot. for
Summ. J., Dkt. 185 at 36.) Plaintiffs’ argument, however, is unsupported by law.
The Eleventh Circuit has long recognized that “a plaintiff may sue only the
particular official who has threatened to take some unconstitutional act against him
or her.” Int’l Soc’y for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809,
819 n.4 (5th Cir. 1979) (emphasis added). No such officials have been named
here. Rather, the named officials here are actively promoting a policy that seeks to
prevent any sort of harm to Plaintiffs, and as such, have no meaningful connection
7
with the conduct of which Plaintiffs now complain.
Plaintiffs’ lead case, Luckey v. Harris, recognizes this requirement, noting
that “the state officer sued must, by virtue of his office, ha[ve] some connection
with the unconstitutional act or conduct complained of.” 860 F.2d 1012, 1015-16
(11th Cir. 1988) (citation omitted).
In Luckey, the Eleventh Circuit found a
connection between the Governor of Georgia and certain Georgia judges and
allegations of “systemic deficiencies” in the Georgia indigent criminal defense
system that was sufficient to invoke the Ex parte Young exception to Eleventh
Amendment immunity. Id. at 1013. The Luckey plaintiffs alleged widespread
deficiencies including inadequate resources, delays in the appointment of counsel,
adverse pressure on attorneys to expedite trials, and inadequate supervision of the
Georgia indigent criminal defense system.
Id.
The language describing the
shortcoming suggests a wholesale failure to provide a functional indigent defense
system as required by federal law, including the United States Constitution. Id.
The Eleventh Circuit, in finding a sufficient connection between the defendants
and the inadequate indigent defense system, provided a specific list of factors
supporting this connection: (1) the Governor’s responsibility for law enforcement
and his duty to execute the laws faithfully; (2) the Governor’s residual power to
commence criminal prosecutions and his final authority to direct the Attorney
8
General to prosecute on behalf of the state; and (3) the judges’ responsibility for
administering the system of representation. Id. at 1016
Plaintiffs’ allegations against Defendants are not analogous; their allegations
consist of inadequate “supervisory authority” over the Copyright Policy. Plaintiffs
have not alleged, much less proven that the Copyright Policy is not adequately
funded, or that the named defendants have applied pressure to the professors to
streamline or ignore appropriate fair use analysis, or that the Copyright Policy
itself contravenes federal law. Without such evidence, Plaintiffs cannot show a
connection between the named defendants and the alleged copyright infringement
sufficient to support the Ex parte Young exception.
The only directly relevant case addressing whether the supervisory authority
over a University’s copyright policy would be sufficient to meet the connection
requirement of Ex parte Young is Pennington Seed, which directly deals with and
disposes of Plaintiffs’ supervisory theory argument. See Pennington Seed, Inc. v.
Produce Exchange No. 299, L.L.C., 457 F.3d 1334, 1342-43 (Fed. Cir. 2006). The
Federal Circuit in Pennington Seed found that “a nexus between the violation of
federal law and the individual accused of violating that law requires more than
simply a broad general obligation to prevent a violation; it requires an actual
violation of federal law by that individual.” Id. (emphasis added) Plaintiffs’
9
supervisory authority allegations—the same type of allegations found wanting by
the Federal Circuit in Pennington Seed—are deficient and the case should therefore
be dismissed.
II.
ELEVENTH AMENDMENT IMMUNITY AND PROFESSORS
During opening statements, the Court asked whether GSU professors who
make fair use determinations are entitled to Eleventh Amendment immunity. They
are. Acting solely as agents for GSU (an arm of the State), the professors share
Eleventh Amendment immunity to the extent that they are sued in their official
capacities and they may further invoke qualified immunity to the extent that they
are sued in their individual capacities. See Jackson v. Ga. Dep’t of Transp., 16
F.3d 1573, 1575, 1577 (11th Cir. 1994) (state employees sued in their official
capacities are entitled to sovereign immunity); Chavez v. Arte Publico Press, 59
F.3d 539, 547-48 (5th Cir. 1995), vacated on other grounds, Univ. of Houston v.
Chavez, 517 U.S. 1184 (1996) (university employee entitled to qualified immunity
on alleged copyright violation because the employee’s conduct did not violate
clearly established law).
In Chavez, the plaintiff sued the University and the University employee
who had signed the publishing contract at issue.
In addressing whether the
University employee was entitled to qualified immunity, the Court stated:
10
Qualified immunity shields from liability government officials
performing discretionary functions “as long as their actions could
reasonably have been thought consistent with the rights they are
alleged to have violated.” . . . The dispositive question is “whether an
objectively reasonable official would understand that the alleged
improper actions were unlawful.”
Chavez, 59 F.3d at 547 (internal citations omitted).
Because the contractual
provision relating to the duration of the publishing license was ambiguous, the
University employee who executed the contract was entitled to qualified immunity.
Id.
Here, as in Chavez, the individual professors would be entitled to qualified
immunity. Because the task of ascertaining a fair use “is not to be simplified with
bright-line rules, for the statute, like the doctrine it recognizes, calls for a case-bycase analysis.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994),
citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985);
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448, and 450 n.31
(1984); House Report, pp. 65-66; Senate Report, p. 62. The evidence shows that
the professors’ selections were, at a minimum, “reasonably . . . thought consistent
with the rights they are alleged to have violated.” See Chavez, 59 F.3d at 547.
Plaintiffs could have sued the professors and attempted to establish the
meaningful connection required for an Ex parte Young action. If Plaintiffs had
proved that the professors continuously failed to abide the Copyright Policy and
11
were misusing the fair use defense in an ongoing and continuous manner, the Court
could have issued prospective injunctive relief against each professor in his or her
capacity as an employee of GSU. See Pennington Seed, 457 F.3d at 1342-43.
III.
CONCLUSION
The evidence at trial confirms that Defendants created, adopted, and
implemented a comprehensive copyright policy and required professors to certify
that they conducted a fair use analysis before excerpts are posted, and that the
professors certified that each excerpt at issue was fair. There is no evidence
whatsoever that the named defendants had any involvement with the fair use
determinations at issue in this case or that they were willfully blind to the same.
Instead, Defendants’ connection is merely have a generalized responsibility for all
policies at the University (and in this case, the policy was followed). This general
power, however, is not sufficient to establish the necessary connection between the
Defendants and the professors’ allegedly incorrect fair use findings to meet the Ex
parte Young exception to Eleventh Amendment immunity.
See Women’s
Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir.2003) (where
enforcement of state statute is the responsibility of parties other than governor, the
governor’s general executive power to enforce the statute is insufficient to confer
jurisdiction over him in an action challenging statute as unconstitutional); Waste
12
Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (mere fact
governor is under general duty to enforce laws does not make him a proper
defendant in every action attacking constitutionality of a state statute), cert. denied,
535 U.S. 904 (2002); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979)
(same). Accordingly, Defendants respectfully request that the Court find in favor
of Defendants and dismiss this action.
Respectfully submitted, this 25th day of May, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General
13
/s/ Katrina M. Quicker
Katrina M. Quicker
Special Assistant Attorney General
Georgia Bar No. 590859
Richard W. Miller
Georgia Bar No. 065257
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: (678) 420-9300
Facsimile: (678) 420-9301
Email: quickerk@ballardspahr.com
Stephen M. Schaetzel
Georgia Bar No. 628653
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: (404) 572-4600
Facsimile: (404) 572-5100
Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308
Telephone: (404) 645-7700
Facsimile: (404) 645-7707
Attorneys for Defendants
14
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing Defendants’ Bench
Brief on Eleventh Amendment Immunity Issues was prepared in a font and point
selection approved by this Court and authorized in Local Rule 5.1C.
/s/ Katrina M. Quicker
Katrina M. Quicker
Special Assistant Attorney General
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: (678) 420-9300
Facsimile: (678) 420-9301
Email: quickerk@ballardspahr.com
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,
Civil Action No.
1:08-CV-1425-ODE
-vs.MARK P. BECKER, in his official
capacity as Georgia State University
President, et al.,
Defendants.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 25th day of May, 2011, I have
electronically filed the foregoing Defendants’ Bench Brief on Eleventh
Amendment Immunity Issues with the Clerk of the Court using the CM/ECF
system, which will automatically send e-mail notification of such filing to the
following attorneys of record:
Edward B. Krugman
krugman@bmelaw.com
Georgia Bar No. 429927
Corey F. Hirokawa
hirokawa@bmelaw.com
Georgia Bar No. 357087
John H. Rains IV
rains@bmelaw.com
Georgia Bar No. 556052
R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street N.W.
Suite 3900
Atlanta, GA 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
/s/Katrina M. Quicker
Katrina M. Quicker
Special Assistant Attorney General
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: (678) 420-9300
Facsimile: (678) 420-9301
Email: quickerk@ballardspahr.com

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